The text of the negotiated Council Position at first reading, in substance and to a large extent, is in line with the Commission's proposal and therefore can be supported.
The negotiated Council Position is the result of inter-institutional negotiations in two stage process. The first stage covered the technical substance of the proposal and the second the adaptation of the proposal to the Treaty on the Functioning of the European Union (TFEU) as regards its legal basis and comitology provisions.
The main subjects of negotiation on which an agreement was reached are as follows:
Change of legal basis (preamble): due to the entry into force of the Lisbon Treaty, Council and Parliament agreed to change the legal basis to Article 194 TFEU (instead of article 114 TFEU).
Delegated acts: the Council and Parliament agreed on the provisions regarding the delegated acts. A Commission statement will be attached to clarify that notification of delegated acts shall take into account the periods of recess in institutions. A joint Council, Parliament and Commission statement will also be attached indicating that the provisions of this Directive do not constitute a precedent as regards the implementation of Article 290 TFEU (Annex II)
Extension of scope: the scope is extended to cover all energy-related products of the household, commercial and industrial sector, as proposed by the Commission.
Unauthorised use of label: language is inserted to clarify what constitutes legitimate and illegitimate use of the label.
Market surveillance: market surveillance provisions are reinforced to provide better enforcement on the Directive.
Advertising requirements: a new provision is inserted requiring that the energy efficiency class must be shown in any advertisement which contains energy related information or the price of those products covered by delegated acts.
Public procurement: Member States are encouraged to use the highest energy efficiency class for procurement (subject to cost-effectiveness, economic feasibility, technical suitability and sufficient competition).
Incentives: Member States are encouraged to apply the highest energy efficiency class or even aim higher by applying the highest performance levels when providing incentives for their citizens. Taxation and fiscal measures are excluded as incentives from this Directive.
Label Layout: three more classes (A+, A++, A+++) can be added to the A-G scale which remains the basis. There could be a review by the Commission when a significant proportion of products will be in the two highest energy efficiency classes (A++/+++), and further differentiation is justified. A Commission statement will be attached to clarify what is meant by "a significant proportion of products". A recital will indicate that at the time (by 2014) of reviewing the framework Directive, the label review will consider the option of rescaling.